INTERNATIONAL INVESTORS v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD ET AL.
AC 43035
Appellate Court of Connecticut
Officially released February 16, 2021
Prescott, Elgo and Moll, Js.
Argued September 21, 2020
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Syllabus
The plaintiff, an abutting property owner, appealed to this court from the judgment of the trial court sustaining in part its appeal from the decision of the defendant Town Plan and Zoning Commission of the Town of Fairfield granting extensions of the approvals of a special permit and coastal site plan review to the defendant F Co., until April, 2023. The commission had approved the special permit and coastal site plan review in April, 2006. A nonparty appealed the commission‘s decision to the Superior Court and an appeal from the Superior Court‘s judgment in that case to our Supreme Court was dismissed on April 8, 2009. In April, 2009, the Fairfield zoning regulations provided that a special permit was valid for two years, subject to any extensions, from the date of such approval and, in the case of an appeal, the two year period would commence from the date of the final judicial determination of such appeal. On February 8, 2011, the commission amended the Fairfield zoning regulations, which deleted the language providing for the two year limitation. On February 15, 2011, F Co. requested confirmation from the town that pursuant to the 2011 amendment to the Fairfield zoning regulations and a certain statute (
Procedural History
Appeal from the decision of the named defendant extending its approvals of a special permit and a coastal site plan review granted to the defendant Fairfield Commons, LLC, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Radcliffe, J.; judgment sustaining the appeal in part, from which the plaintiff, on the granting of certification, appealed to this court. Affirmed in part; reversed in part; judgment directed.
James T. Baldwin, for the appellee (named defendant).
John F. Fallon, for the appellee (defendant Fairfield Commons, LLC).
Opinion
MOLL, J. This appeal requires us to consider whether a zoning authority may condition its approval of a special permit on the completion of development attendant to the permitted use by a date certain, in effect imposing a conditional time limit on the special permit. The plaintiff, International Investors, appeals from the judgment of the trial court disposing of the plaintiff‘s appeal from the decision of the defendant Town Plan and Zoning Commission of the Town of Fairfield (commission) extending its approvals of a special permit and coastal site plan review granted to the defendant Fairfield Commons, LLC (Fairfield Commons).1 After sustaining the plaintiff‘s appeal insofar as it challenged the commission‘s decision to extend the special permit approval, the court ruled that it nonetheless was not finding that the special permit had expired because, it reasoned, the special permit, once recorded in the town land records, was valid indefinitely and not subject to a condition limiting its duration. On appeal before us, the plaintiff claims that the court improperly concluded that the special permit remained valid on the basis that it could not be
The following facts and procedural history are relevant to our resolution of this appeal. Fairfield Commons owns an approximately 3.6 acre parcel of property known as 1125 Kings Highway in Fairfield (property). The plaintiff is an abutting landowner. In 2006, Fairfield Commons filed an application for a special permit to construct a 36,000 square foot retail building on the property. Fairfield Commons also submitted an application for a coastal site plan review.2 On April 11, 2006, the commission approved the special permit and the coastal site plan review.3 Thereafter, a nonparty to this matter appealed from the commission‘s decision to the Superior Court, challenging a condition of the special permit requiring the removal of an existing billboard. See Lamar Co. of Connecticut, LLC v. Town Plan & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-06-4016312-S, 2008 WL 366557 (January 25, 2008) (Lamar action). On May 5, 2008, an appeal from the judgment rendered in the Lamar action was filed with this court and later transferred to our Supreme Court, which dismissed the appeal on April 8, 2009. See Connecticut Supreme Court, Docket No. SC 18204 (appeal dismissed April 8, 2009).
The Fairfield Zoning Regulations in effect on April 8, 2009 (2009 regulations)4 contain the following relevant provisions. Section 25.8.3 of the 2009 regulations provides: “The duration of a [special permit] shall be as provided in Sections 2.23.5, 2.23.6 and 2.23.7 of the Zoning Regulations.” Section 2.23.5 of the 2009 regulations in turn provides: “Approval or approval with modification shall constitute approval conditioned upon completion of the proposed use in accordance with the Zoning Regulations within a period of two (2) years from the date of such approval.” Section 2.23.6 of the 2009 regulations provides in relevant part: “(a) Upon failure to complete within such two (2) year period, the approval or approval with modification shall become null and void, unless an appeal to court is filed within such period, whereupon the two (2) year period shall commence from the date of the final judicial determination of such appeal. Three (3) extensions of such period for an additional period not to exceed one (1) year may be granted, subject to appropriate conditions and safeguards necessary to conserve the public health, safety, convenience, welfare and property values in the neighborhood. . . .”5
On February 15, 2011, Fairfield Commons requested confirmation from the town of Fairfield (town) that, pursuant to the 2011 amendment and
On May 9, 2011, the legislature amended
Several years later, on March 29, 2018, Fairfield Commons submitted a letter to the commission requesting an extension of the special permit and coastal site plan review approvals. Fairfield Commons represented that, on an unspecified date, the commission and the office of the town attorney had confirmed that, in accordance with
On April 10, 2018, the commission held a meeting to discuss Fairfield Commons’ request for an extension of the special permit and coastal site plan review approvals. The meeting was attended by commission members, alternates, and town department members, including Jim Wendt, the town‘s planning director. During the meeting, which was transcribed, Wendt stated that, at the time of Fairfield Commons’ March 29, 2018 request for an extension of the approvals, the expiration date of the approvals was April 8, 2018, explaining that (1) on April 8, 2009, when our Supreme Court dismissed the appeal filed in the Lamar action, the 2009 regulations were in effect, and, thereunder, the approvals were set to expire on April 8, 2011, (2) prior to the 2011 amendment, the 2009 regulations conflicted with
On February 14, 2019, the trial court, Radcliffe, J., issued a memorandum of decision sustaining, in part, the plaintiff‘s appeal. After finding that the plaintiff was statutorily aggrieved as an abutting landowner of the property, the court determined that
The court proceeded to clarify that its decision sustaining the plaintiff‘s appeal as to the commission‘s decision extending the special permit approval did not operate to invalidate the special permit. Citing R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015), and several Superior Court decisions, the court stated that “[s]pecial permits, like variances, attach to the property,
mons . . . assuming that the special permit was otherwise effective. The only approval impacted by the action, based upon the provisions of [
On March 1, 2019, the plaintiff filed a petition for certification to appeal from the court‘s judgment, which this court granted on May 22, 2019. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The plaintiff on appeal challenges the court‘s judgment insofar as the court concluded that the special permit granted to Fairfield Commons could not be limited in duration and, thus, remained valid (and did not require timely extension).15 More specifically, the plaintiff claims that the court improperly concluded that the special permit, once recorded in accordance with
At the outset, we set forth the applicable standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Villages, LLC v. Enfield Planning & Zoning Commission, 149 Conn. App. 448, 456, 89 A.3d 405 (2014), appeal dismissed, 320 Conn. 89, 127 A.3d 998 (2015). This appeal does not require us to consider the propriety of the commission‘s decision to grant Fairfield Commons’ application for a special permit. Instead, the issue before us concerns the court‘s legal conclusion that the special permit, once recorded in the town land records, was indefinite and not subject to a condition limiting its duration. Thus, our review is plenary.
I
We first turn to the plaintiff‘s claim that the trial court incorrectly determined that there was no statutory authority enabling a zoning authority to restrict the duration of a special permit, which, in the present case, came in the form of a condition requiring the completion of development attendant to the permitted use within two years, subject to extensions. The plaintiff contends that
“It is axiomatic that [a]s a creature of the state, the . . . [town . . . whether acting itself or through its planning commission] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. . . . In other words, in order to determine whether the [condition] in question was within the authority of the commission to [impose], we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the [action].” (Citations omitted; internal quotation marks omitted.) Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 308, 547 A.2d 569 (1988).
Resolving the plaintiff‘s claim requires us to construe
Section
cial act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. . . .” (Footnote added.)
We construe the language of
The defendants argue that the legislature has expressly imposed durational limits with respect to other land use permits, such as inland wetlands permits; see
a special permit approval to “conditions necessary to protect the public health, safety, convenience and property values.”
In sum, we conclude that
II
The plaintiff next claims that the trial court improperly relied on the legal tenet that special permits “run with the land” in concluding that special permits, once recorded pursuant to
In concluding that special permits, once recorded in accordance with
of special permits.” Id., 163.
Upon our careful review of the case law cited by the trial court and/or in Fuller‘s treatise, we conclude that the court misapplied the legal principle that special permits “run with the land.” In those cases, the courts concluded that various land use permits “run with the land” in that they are not personal to the applicant and remain valid notwithstanding a change in the ownership of the land. See Fromer v. Two Hundred Post Associates, 32 Conn. App. 799, 802, 805, 631 A.2d 347 (1993) (concluding that inland wetlands permit “to conduct a regulated activity runs with the land and not with the applicant,” that permit “is concerned solely with the property to be regulated, and that the change of ownership does not affect the validity of the permit“); Madore v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV-11-6005648-S (August 21, 2012) (54 Conn. L. Rptr. 519, 523) (concluding that home occupation site plan permit issued to plaintiff‘s husband remained valid notwithstanding husband‘s death because permit “ran with the land, not with the applicant“); Gozzo v. Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-07-4015865-S (July 24, 2008) (46 Conn. L. Rptr. 110, 114) (concluding that conditions imposed on special permit, including condition providing that special permit “shall pertain only to the present owner of the property and shall not run with the property,” were invalid, stating, inter alia, that “[t]o the extent that [the] conditions are personal to the plaintiffs and reflect that this permit will not run with the land, they are invalid“); Shaw v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-02-395344 (July 12, 2005) (39 Conn. L. Rptr. 648, 651) (concluding that “special permit runs with the land” and, therefore, change in operator of group home on property would not invalidate special permit); N & L Associates v. Planning & Zoning Commission, supra, 39 Conn. L. Rptr. 468 (concluding that “special permit issued to [prior property owner] ran with the land and [subsequent property owner] was entitled to use it to operate its gravel excavation business“); Beeman v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV-99-0427275 (April 27, 2000) (27 Conn. L. Rptr. 77, 80) (concluding that special permit “run[s] with the land” and, therefore, condition voiding special permit if permit holder transferred property was invalid); Griswold Hills of Newington Ltd. Partnership v. Town Plan & Zoning Commission, Superior Court, judicial district of Hartford-New Britain, Docket No. CV-95-0705701-S (June 9, 1995) (14 Conn. L. Rptr. 405, 407) (concluding that special permit and site plan “run with the land” and, therefore, current owner of property had standing to bring mandamus action to require planning and zoning commission to finalize land use approvals granted to previous owner of property). These cases illustrate the well settled precept that land use permits are not personal to the applicant and are not rendered void by a transfer of ownership of the property. None of these cases, however, addresses the issue of whether a zoning authority may impose a temporal condition in approving a special permit.
Put another way, there is a distinction between (a) the principle that a special permit “runs with the land” as opposed to being personal in nature to the applicant and (b) the ability of a zoning authority to place a temporal condition on a special permit. At least one Superior Court decision has recognized this distinction. In Vanghel v. Planning & Zoning Commission, Superior Court, judicial district of Windham, Docket No. CV-11-6004127-S (August 20, 2012) (54 Conn. L. Rptr. 589), the trial court upheld the denial of the plaintiff‘s application seeking a second renewal of his special permit on the ground that the local zoning regulations, pursuant to which special permit approvals were rendered void if improvements attendant thereto were not completed within two years, subject to renewal for “an additional period of two years,” did not authorize multiple renewals. (Emphasis omitted.) Id., 592-94. In a footnote, the court considered an argument raised by the plaintiff that construing the zoning regulations to preclude multiple renewals would be “inconsistent with the principle that the permit attaches to the land and follows the title . . . .” Id., 594 n.1. The court rejected that argument, aptly observing that “[t]here is no inconsistency between the zoning rights running with the land and not with the owner, and temporal limitations on those rights. They are different subjects.”24 (Emphasis added.) Id. We agree with that assessment.
In his treatise, Fuller cites Durham Rod & Gun Club, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV-94-0072189-S (November 27, 1995), Scott v. Zoning Board of Appeals, 88 App. Div. 2d 767, 451 N.Y.S.2d 499 (1982), and Room & Board Homes & Family Care Homes, Operators & Owners v. Gribbs, 67 Mich. App. 381, 241 N.W.2d 216 (1976), in positing that “[t]here is some case law in Connecticut and other states concluding that in the absence of statutory authority, the commission or board which grants special permits (special exceptions) cannot impose a time limit or expiration date as a condition of approval of the permit.” (Emphasis added.) 9B R. Fuller, supra, § 50:1, p. 163 and n.8. As we have concluded in part I of this opinion,
Additionally, in his treatise, in support of the proposition that, once issued, a special permit “remains valid indefinitely since the use allowed under it is a permitted use subject to conditions in the zoning regulations,” Fuller cites Cioffoletti v. Planning & Zoning Commission, 24 Conn. App. 5, 584 A.2d 1200 (1991), and East Windsor Sportsmen‘s Club v. Planning & Zoning Commission, Superior Court, judicial district of Hartford-New Britain, Docket No. 338696 (July 10, 1989) (4 C.S.C.R. 657). 9B R. Fuller, supra, § 50:1, p. 162 and n.5. Neither case supports the conclusion that special permits cannot be temporally limited.
In Cioffoletti, the plaintiffs owned property on which they operated a commercial sand and gravel removal business as a valid nonconforming use. Cioffoletti v. Planning & Zoning Commission, supra, 24 Conn. App. 6. Sometime after the plaintiffs had started their business, the local planning and zoning commission amended its zoning regulations to provide that sand and gravel operations required a special permit, which could be granted for a maximum of two years, subject to an additional extension. Id., 6-7. The plaintiffs challenged the amended regulation, and the trial court held that, as applied to the plaintiffs, the amended regulation was illegal because it attempted to prohibit the plaintiffs from continuing their valid existing nonconforming use. Id., 7. On appeal, this court affirmed the trial court‘s judgment, stating that “[i]t is a fundamental zoning precept in Connecticut . . . that zoning regulations cannot bar uses that existed when the regulations were adopted.” Id., 8. Additionally, this court observed that “assum[ing], arguendo, that the [planning and zoning commission] has the authority to regulate sand and gravel removal and if otherwise proper, the regulation in question is a lawful mechanism to control any such business started after the effective date of the regulation.” Id. Thus, whether a special permit can be tempo-rally limited was not at issue in Cioffoletti; rather, Cioffoletti was decided in accord with the well settled legal principle that zoning regulations cannot prohibit preexisting valid nonconforming uses.
In East Windsor Sportsmen‘s Club, the plaintiff submitted an application to amend its existing special permit to allow it to
In sum, we conclude that the court incorrectly determined that the special permit granted to Fairfield Commons, once recorded, was valid indefinitely and could not be subject to a temporal condition, such as a condition requiring the completion of development attendant to the permitted use by a date certain. Thus, the court committed error in concluding that the special permit had not expired. Once the special permit became effective in 2009, Fairfield Commons had two years, subject to any additional extensions granted, to complete development on the property. Fairfield Commons failed to complete development or request any extensions of the special permit approval within that time frame, and, therefore, the special permit expired in 2011. We leave undisturbed the court‘s conclusion that the commission‘s decision extending the special permit was improper.
The judgment is reversed only with respect to the trial court‘s conclusion that the special permit approval granted to Fairfield Commons, LLC, had not expired, and the case is remanded with direction to render judgment sustaining the plaintiff‘s appeal as to that claim; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.